Mass Supreme Court Ruling legalizing gay marriage

[Walden]

A Few Other Massachusetts Laws

It is illegal to reproach Jesus Christ or the Holy Ghost. (MGL Chapter 272 section 36)

It's illegal to keep a mule on the second floor of a building not in a city unless there are 2 exits. (MGL Chapter 272 section 86)

It's illegal to allow someone to use stilts while working on the construction of a building.(MGL Chapter 149 Section 129B)

It's illegal to drive Texan, Mexican, Cherokee, Indian or other cattle which might contain disease, on a public road. (MGL Chapter 129 Section 35)


Not a state law, but a Boston ordinance which might be of interest:

It is illegal to play the fiddle.

[Lorenzo]

A weird thought just crossed my mind after reading Walden's post. Massachusetts may be the only place in the world where a married gay couple can't but beer on Sunday.

Of course those old puritan "blue laws" are being repealed, but not everywhere yet. It strikes me odd that this NE state could be both so-called progressive, yet so backwards at the same time.

Just a few decades ago, stores were shuttered on the Christian's fake birthday of the world...no commerce anywhere. This all started to fall apart during WWII. But back in the mid 1800's, people could get whipped for just pretending to enjoy regular life, like playing shuffleboard or skipping church, and they could have thier tongues burned out for cussing or even talking against church inhumanities, or have their ears severed for listening to such talk.

Massachusetts has to be one of the weirdest states.

[jim stone]

Well, the stuff about the fiddle isn't so bad.

[Lorenzo]

Oh yea? Prepare to recieve your curse. You are now destined to be a fiddlehead fern in your next life.

and you'll be chewed on and chewed out by gormet "fern-heads" forever.

[Jerry Freeman]

Cranberry will be SO disappointed.

[Lorenzo]

Why? Cran's a vegetarian and likes to eat people. It's a perfect situation.

[glauber]

It's illegal to keep a mule on the second floor of a building not in a city unless there are 2 exits. (MGL Chapter 272 section 86)

This one is precious:

No person shall stable a horse or mule on the second or any higher floor of any building, unless there are two means of exit therefrom, at opposite ends of the building, to the main or street floor, unless such building is equipped with an automatic sprinkler system. This section shall not apply to cities.

Notice that if you have a sprinkler system, then it's OK, so maybe they were worried about mules or horses being trapped in a burning building. It's also OK in Boston (i'm not going to especulate why ).

[Darwin]

It's illegal to keep a mule on the second floor of a building not in a city unless there are 2 exits.

This may have a basis in the supposed reluctance of mules to back up. I recall a book written by a US Army mule handler who took pack trains through mountainous areas of Italy during WW2. He claimed that you could simply back a trusting, compliant horse right over a cliff, but that mules were too smart to go anywhere if they couldn't see where they were going.

Now, imagine that a mule has been led up a flight of stairs into a narrow hallway. If it won't back up, and there's not another exit in front of it, how the heck are you gonna get it out of there? Quite a few people could get injured trying to carry a struggling mule back down a flight of stairs.

[Rando7]

Edited due to second thoughts

[jim stone]

Found this interesting. Bad fall out for for the dems
from the Mass court ruling;
this may have a significant role to play in the
next election.
I don't know her very well, but think Eleonore Clift on the left,
but critical of the Mass ruling. Kerry is now saying
that he's against gay marriage but for civil
unions.


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Bad Timing?
The Massachusetts ruling on gay marriages could hurt Kerry by playing into the nation's cultural war and energizing the religious foot soldiers of the GOP
WEB EXCLUSIVE
By Eleanor Clift
Newsweek
Updated: 6:08 p.m. ET Feb. 06, 2004

Feb. 6 - By ruling gay marriage constitutional and declaring the less contentious option of civil unions unconstitutional, the Massachusetts Supreme Court made the perfect the enemy of the good. The decision set in motion a chain of events that could have disastrous consequences for the Democrats in November.

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Reacting to the High Court's 4-3 decision, a Democratic strategist quipped, "I wonder if they're taking money from the Republican National Committee. The timing is devastating. It's really going to hurt."

With Massachusetts Senator John Kerry seemingly poised to become the Democratic nominee, the ruling is a gift for the White House. The Bush campaign can use Massachusetts as shorthand for everything that is un-American. The Democrats are making it even easier by holding their convention in Boston.

Getting people worked up over gay marriage distracts from a war that isn't going well in Iraq and an economy that isn't producing jobs. Coming just three days after Janet Jackson?s much ballyhooed "wardrobe malfunction" during the Super Bowl halftime entertainment, the judges' decision plays into the country's cultural war and energizes evangelical Christians and Catholic traditionalists, the foot soldiers of the GOP.

The 2004 election is shaping up to be a contest of intensity?which side can get more of its hard-core supporters to the polls. The first President Bush lost his bid for reelection because he didn't tend sufficiently to the party's base, and social conservatives failed to turn out in the numbers he needed. The nightmare issue for Karl Rove is that the Democrats are far more energized than the Republicans. The turnout was substantially up in their recent primaries and caucuses. Here are some numbers: Delaware up 195 percent; New Hampshire up 42 percent; Oklahoma up 124 percent; Missouri up 58 percent; Arizona up 215 percent. The motivating factor for these voters is "ABB"? anybody but Bush?which means they'll be there in November.

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ELEANOR CLIFT
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At the same time, conservatives have been losing faith in George W. Bush. The rising budget deficit, an immigration reform plan that they see as rewarding law-breakers, more federal money for the National Endowment for the Arts (NEA) and a prescription drug plan that will cost a third more than Bush promised top their list of grievances. But introduce the specter of gay marriage and all is forgiven. These same voters who might have sat out the election will be there for Bush.

A White House statement called the gay marriage decision "deeply troubling." Sixteen states already are moving toward banning gay marriages and a constitutional amendment is being drafted in Congress. Even many progressives say this is not an issue for which they would go to the ramparts. "It's like fiftieth on my list of priorities," says a Democratic activist, who predicts that once Kerry secures the nomination, assuming he does, he'll have to do a "Sister Souljah" appearance in front of a gay group. Sister Souljah was a relatively unknown blues singer whom Bill Clinton rebuked for her racist, anti-white lyrics at an event organized by Jesse Jackson during the 1992 campaign. Caught off guard and offended by Clinton's lecture, Jackson distanced himself from the candidate?exactly the result Clinton needed to legitimize himself as a centrist who wasn't beholden to the party's liberal interest groups.

Kerry is insulated from some of the GOP's blunter attacks on him as a liberal elitist because of his military service, but he can't just let the gay marriage issue fester. He was one of only 14 senators who voted against the Defense of Marriage Act in 1996, which denies gay marriages federal recognition and allows states to disregard gay marriages performed in states where they are legal. President Clinton signed the bill under duress knowing his reelection was at stake, and that a presidential veto would kick off a campaign season of gay-bashing.

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<http://a799.g.akamai.net/3/799/388/c23e ... et_red.gif> Madam President: Shattering the Last Glass Ceiling
by Eleanor Clift
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The Massachusetts split decision ruled that civil unions consign same-sex couples to second-class status, and that marriage is the only way to go. But there is a danger of the courts leading society in a direction it is not ready to go. Gay rights is a civil rights issue, but there is a difference between sexual orientation and race. Affirmative action laws apply to African-Americans; they don't apply to gays and lesbians. Maybe someday society will come to an expanded view of gender and gay marriage will be affirmed, but that evolution should emerge from society, not from the courts.

When Howard Dean said he wanted the votes of Southern whites with confederate flag decals on their pickup trucks, his words troubled African-Americans who view the confederate flag as a racist symbol. Dean sought to assure African-Americans about his commitment to civil rights by pointing to Vermont's civil unions bill, which he signed. It didn't work. Blacks don't equate the two, and black voters in South Carolina, where Dean made the comparison, don't have liberal views on the issue of gay rights.

Ultimately high-voltage social issues like gay marriage matter less than the economy and the situation in Iraq. It's noise, but if the noise is loud enough, what we like to call the "real issues" get muted. The Democrats accuse Bush of being out of touch but on this one, the administration is on the side of the majority.

[Northern Whistler]

We have had gay marriages for awhile up here. Seems pretty much accepted now. No demons have spilled into the air, or locus infestations as of yet. I will keep you posted if I hear of any.

[jim stone]

For those who want to follow the legal dimension
of the gay rights debate, or who
wonder whether the next election is of real importance
(aren't both parties more or less the same?), this may be
interesting.
Law.com
Another High Court Look at Gay Rights Likely
Tuesday February 10, 1:57 am ET
Tony Mauro, Legal Times

The Massachusetts Supreme Judicial Court's Feb. 4 reaffirmation of its ruling in favor of same-sex marriage touched off a new wave of celebration among civil rights advocates that began last June with the U.S. Supreme Court's gay rights decision in Lawrence v. Texas.

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But in spite of the Massachusetts ruling, it is becoming increasingly clear to advocates and critics alike that Lawrence has not launched a straight-line march toward expansion of gay rights through litigation.

Recent lower court decisions in cases from Kansas and Florida that limit or criticize Lawrence are beginning to suggest a more complicated path ahead for gay rights advocates, with detours and reversals likely -- along with victories like the one in Massachusetts. Other cases on the horizon, involving issues like gays in the military, a ban on the sale of sexual aids in Alabama, and even anti-polygamy laws in Utah, will also give lower court judges a chance to put their spin on Lawrence.

Eventually, one or more of those cases will make it back to the Supreme Court, and some predict that the justices will feel compelled to speak again on gay rights. Depending on the Court's composition when that new test arrives, it could reinforce -- or weaken -- Lawrence.

"When you see things happening that don't fit the paradigm of Lawrence , you begin to wonder if things were as positive as you thought," says Paul Smith, the Jenner & Block partner who argued and won the case. "But we'll see. There are so many positive and negative things happening. The picture changes every day. I would be surprised if the Supreme Court doesn't step in again to say that nondiscrimination means nondiscrimination. "

But critics of Lawrence are not so sure that is what the Court will say. "Lawrence is already on shakier ground in these earlier stages than Roe v. Wade has ever been," says Mathew Staver, president of Liberty Counsel, a gay rights opponent who filed briefs in Lawrence as well as in the Kansas and Florida cases decided in January. "A challenge to Lawrence will be back to the Supreme Court within two years, and the outcome will depend on who is on the Court at the time."

Lawrence v. Texas struck down that state's criminal sodomy law as a due process violation that intrudes on the privacy of homosexuals. "As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom," wrote Justice Anthony Kennedy for the 5-4 majority.

When it was handed down, gay rights advocates proclaimed a sweeping victory that gave them the foundation for a broad assault on laws treating homosexuals differently.

The first post-Lawrence decision that seemed to justify that optimism came last November when the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state's bar against same-sex marriages could not be constitutionally justified. Lawrence was cited repeatedly in that decision.

The Goodridge ruling gained even more potency Feb. 4 when the same Massachusetts court, in response to a question from the state Legislature, said that merely providing for "civil unions" for gay couples, rather than marriage, would not cure the constitutional defect.

But in courtrooms outside Massachusetts, Lawrence has gotten considerably less judicial respect.

The first setback came Jan. 28 when the 11th U.S. Circuit Court of Appeals upheld Florida's outright ban on the adoption of children by sexually active gay men or women. The unanimous ruling in Lofton v. Secretary of the Department of Children and Family Services said the Lawrence ruling did not control the case because it targeted a criminal statute involving adults -- not, as in Florida, a state privilege involving both adults and minors.

But the 11th Circuit panel did not leave it there. Judge Stanley Birch's opinion went on to criticize Lawrence in detail: "We are particularly hesitant to infer a new fundamental liberty interest from an opinion whose language and reasoning are inconsistent with standard fundamental-rights analysis."

Birch also said that Lawrence contained "virtually no inquiry" into whether the right at issue is deeply rooted in U.S. history. He also criticized the decision for failing to apply a "strict scrutiny" analysis to the Texas law.

"The constitutional liberty interests on which the Court relied were invoked not with careful description but with sweeping generality," the panel concluded.

Two days later, on Jan. 30, came another ruling that gave Lawrence short shrift, this time from the Kansas Court of Appeals, an intermediate appellate court.

The day after Lawrence was decided last June, the Supreme Court sent back to Kansas courts the case of Limon v. Kansas with instructions to consider it anew in light of Lawrence.

Matthew Limon had been sentenced to 17 years in prison for having sex with a 14-year-old boy. Limon, who was 18 at the time, appealed the sentence, noting that under the state's "Romeo and Juliet" law, his penalty would have been 15 times lighter if he'd had sex with a girl the same age.

As instructed, the Kansas court took Lawrence into account -- but said it did not apply. Echoing the 11th Circuit, the Kansas court noted that Lawrence involved adults, not minors.

"Because the present case involved a 14-year-old developmentally disabled child, it is factually distinguishable from Lawrence," wrote Kansas Appeals Judge Henry Green Jr. "In addition, the present case is legally distinguishable from Lawrence." The judge went on to point out that Limon had made an equal protection claim, not a due process challenge of the kind that Lawrence endorsed.

The Kansas court also cited a paragraph in Kennedy's majority ruling in Lawrence that Birch had quoted as well, and which could prove to be the mantra of judges who want to interpret the ruling narrowly: "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter."

These limiting sentences did not deter the Massachusetts high court from applying Lawrence to recognition of same-sex marriage, and gay rights advocates hope that other courts will also view Lawrence expansively.

"As with any breakthrough at the Supreme Court level, it takes some time for lower courts to fully assess the changes in the law and move beyond their assumptions and prejudices," says Susan Sommer, a lawyer with Lambda Legal. "The Massachusetts court gets it, and others will too."

The next major appellate tests of the vitality of Lawrence may come soon. The U.S. Court of Appeals for the Armed Forces heard arguments last October in United States v. Marcum, which asks whether the military's ban on same-sex sodomy is invalid in light of Lawrence. And a separate case before the U.S. Court of Federal Claims, Loomis v. United States, makes a broader Lawrence -related challenge to the "don't ask, don't tell" policy governing gays in the military. Plaintiff Steve Loomis is seeking to recover pension benefits he lost when he was discharged from the Army in 1997 for being gay.

The Utah Supreme Court heard arguments last December in State v. Green, which included a Lawrence-related challenge to that state's laws against polygamy. Lawyers for polygamist Tom Green asserted that under Lawrence, moral disapproval alone is not enough of a rationale for a state to prohibit a private relationship.

And an 11th Circuit panel is expect to rule soon in Pryor v. Williams , in which Alabama's attorney general is defending his state's law that bans the sale of sexual aids or devices. Opponents of the law invoked Lawrence during oral arguments last September before an 11th Circuit panel that included Birch, the same judge who wrote last month's Lofton decision.

But the criticism already leveled at Lawrence has some analysts wondering whether the structure and language of Kennedy's majority opinion invited attack.

"What judges seem to be saying is that Justice Kennedy may be too rhetorically poetic for his own good," says Emory University legal historian David Garrow, who has studied the Court's privacy jurisprudence. "It may sound winsome as moral commentary, but as black-letter constitutional law, they are not impressed."

Garrow sees a historical parallel to the early judicial reaction to Lawrence. Nearly 50 years ago, in the aftermath of Brown v. Board of Education, which found segregated public schools unconstitutional, some federal and state judges interpreted Brown narrowly, ignored it, or even defied it -- until the Court forcefully ruled in Cooper v. Aaron in 1958 that its Brown mandate could no longer be resisted.

"We're in very much a 1956-type historical setting, where the previous paradigm of inequality is suddenly upended and a surprising new mandate of full equality is ordered," says Garrow. "It's no surprise, now as 50 years ago, that there's judicial resistance to the new mandate as well as resistance from other quarters."

[Northern Whistler]

No sex toys, or gay marriages? But it OK for you to buy and carry a hand gun as long as you have ID, because of some right to carry arms? I think personally I would rather have someone carrying around a 6" adult novelty, then a 6" pistol.

[jim stone]

Yes, here we have what I take to be (FWIW) an
example of idiotic law enforcement.


Texas Saleswoman Faces Trial for Selling Sex Toys
[Reuters]
Wed Feb 11, 8:22 AM ET

By Jon Herskovitz

DALLAS (Reuters) - Joanne Webb is a mother of three, a Baptist, a booster of the town of Burleson, Texas, and a former schoolteacher. She also faces trial for being a smut merchant.

Webb, 43, was arrested in November by two undercover police officers for selling sexual toys and charged with violating Texas obscenity laws. She could face up to a year in jail and a fine of $4,000 if convicted.

Webb is a representative for Passion Parties, a California company marketing potions, lotions and sexual toys sold at gatherings that mimic Tupperware parties.

Women over 18 meet in a private home for what the company calls a "girl's night out of giggles and fun," during which products designed to enhance sex lives are sold.

It was not a secret in Burleson, a small town near Fort Worth, that Webb sold vibrators, edible creams and racy lingerie.

But not everyone was happy about it.

According to reports in the local media, police said a few residents, who they declined to identify, lodged complaints. A few prominent citizens with strong Christian beliefs were angered by Webb and her activities and asked police to investigate, local media reported.

Two undercover police officers posed as a couple trying to spice up their love life and Webb sold the woman a vibrator. Webb instructed her on its use and explained how it could enhance lovemaking.

That's where she got into trouble.

Texas law allows for the sale of sexual toys as long as they are billed as novelties, BeAnn Sisemore, a Fort Worth attorney representing Webb, told the Houston Chronicle before a gag order was issued by the judge presiding over the case. But when a person markets sex toys in a direct manner that shows their actual role in sex, then that person is subject to obscenity charges, she told the newspaper.

Webb said she turned to Passion Parties to supplement her family's income when her husband's construction business went into a slump.

"For women to become self-confident in their sexuality ... that's what I'm in this for," Webb told the Dallas Morning News before the gag order was imposed.

She added that because of her arrest, she has found herself in a role she never imagined -- a public advocate for allowing women and couples to make personal decisions about their sex lives.

SEX, LIVES AND PASSION PARTIES

Police and Johnson County prosecutors declined to discuss the case, even before the gag order was issued.

Gloria Gillaspie, a pastor at Lighthouse Church in Burleson, said she has met and counseled some women who had talked to Webb about the products she sold.

"It was causing problems with their marriages," she said.



Gillaspie said Webb and her family were asked to leave two churches in town. She did not name the churches.

"They didn't want to comply with what was really Christian conduct and that is why they were asked to leave those churches," Gillaspie said.

But James Brown, a member of the local chamber of commerce and an acquaintance of Webb's, told Reuters: "Most of the people in town support Joanne."

Sisemore said she wants to use this case to overturn obscenity laws in Texas and other states.

"I will fight this all the way with her," Sisemore told the Houston Chronicle. "This is the first time I have felt that my government has overstepped its boundaries."

Sisemore has said she plans to file a federal lawsuit challenging Texas obscenity laws, which she said are so vague that they could be used to prosecute anyone who uses or sells condoms designed to provide stimulation for sexual pleasure.

Patricia Davis, a 59-year-old grandmother and president of Passion Parties, said: "We are very proud of Joanne Webb. She believes in the mission of the company and she is doing a really nice job of representing us."

Passion Parties has been doing booming business. The company racked up $20 million in sales in 2003 and saw 30 months of consecutive growth above the 50 percent mark.

The company has representatives in every state and is doing some of its best business in California, New York and the Bible Belt, a section of the United States where Christian beliefs and clergy are influential.

"Women are looking for ways to enhance their relationship, enhance their sensuality and they have nowhere t

[cowtime]

It's illegal to keep a mule on the second floor of a building not in a city unless there are 2 exits.

This may have a basis in the supposed reluctance of mules to back up. I recall a book written by a US Army mule handler who took pack trains through mountainous areas of Italy during WW2. He claimed that you could simply back a trusting, compliant horse right over a cliff, but that mules were too smart to go anywhere if they couldn't see where they were going.

Now, imagine that a mule has been led up a flight of stairs into a narrow hallway. If it won't back up, and there's not another exit in front of it, how the heck are you gonna get it out of there? Quite a few people could get injured trying to carry a struggling mule back down a flight of stairs.

Mules can be trained to back. My Grandaddy raised mules on our farm and trained them to work in harness. A good work mule was worth 2 horses. Plus they were not as likely to step on plants while plowing.

It is true that a mule has a much better sense of self-preservation and will not walk blindly anywhere it feels in jepardy. Also true, a horse will walk right off a cliff, some of 'em anyway.